[차용금청구사건][고집1977민(1),1]
The validity of an agreement to incorporate interest rate in violation of the Interest Limitation Act into the principal;
The agreement to incorporate interest in the principal of the interest rate contrary to the Interest Limitation Act shall be effective only to the part which regulates the interest within the scope of the Interest Limitation Act.
Article 1 of the Interest Limitation Act
Plaintiff
Defendant
Seoul Central District Court (76Gahap656) in the first instance trial
From February 7, 1975, the part against the defendant ordering the defendant to pay in excess of the amount equivalent to 1,684,783 won and 25 percent per annum from February 7, 1975 to full payment, and the plaintiff's claim on the revoked part shall be dismissed.
The defendant's remaining appeal is dismissed.
All the costs of lawsuit shall be borne by the defendant.
The defendant shall pay to the plaintiff 1,700,000 won with 3% interest per month from February 7, 1975 to the date of full payment.
The judgment that the lawsuit costs shall be borne by the defendant and provisional execution declaration
The original judgment shall be revoked.
The plaintiff's claim is dismissed.
Litigation costs shall be assessed against the plaintiff at all of the first and second trials.
Comprehensively taking account of the whole purport of the parties’ pleadings in the testimony of Non-Party 1 and Non-Party 2 (excluding the part in which it is not believed to be a party member), the Defendant borrowed from the Plaintiff the amount of KRW 1,60,000 on March 6, 1974 as the interest rate of KRW 3% per month, and the due date of payment on March 6, 1976. The Defendant paid only KRW 9,800,000 on April 6, 1974 as the monthly agreement of KRW 49,80 on April 6, 1974, the amount of KRW 40,000 on which the agreement between the Plaintiff and the other party witness was reached, and there is no sufficient evidence to acknowledge the part in the testimony of Non-Party 1 and 5, and there is no evidence to prove that the remaining parties were in violation of the evidence of Non-Party 2, 200,000 on the above loan.
However, the agreement on the inclusion of interest in the principal in violation of the Interest Limitation Act shall be effective only for the portion of the interest within the permissible scope of the Interest Limitation Act, and the amount of interest in accordance with the above agreement shall be 24,783 won calculated by deducting 9,800 won already paid from the interest in the month of 34,583 won with the rate of 25% per annum, which is the permissible limit of the Interest Limitation Act for the principal 1,60,000 won.
Therefore, according to the above agreement, the defendant is obligated to pay the delayed interest at the rate of 25% per annum under the Interest Limitation Act from February 7, 1975 to the full payment date, which is the sum of KRW 24,783,00,000, the sum of the above principal amount of KRW 1,660,000, and KRW 24,783.
Therefore, the plaintiff's claim for objection shall be accepted within the scope of seeking the performance of the above obligation and the remaining claims shall be dismissed without merit. Since the part against the defendant who ordered payment in excess of the above cited amount in the original judgment is unfair, it shall be revoked and the plaintiff's counter concerning the revoked part shall be dismissed. The defendant's remaining appeal shall be dismissed and the costs of lawsuit shall be borne as per Disposition by applying the proviso of Articles 96 and 89 and the proviso of Article 92 of the Civil Procedure Act.
Judges Kim Jin-jin (Presiding Judge)